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P. Shanmugham and ors. Vs. Madras Motor and General Insurance Co. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No.1767 of 1972
Judge
Reported inAIR1974Mad363
ActsMotor Vehicles Act - Sections 110-C and 110-C(2); Code of Criminal Procedure (CrPC) , 1898 - Sections 195; Code of Civil Procedure (CPC), 1908 - Order IX - Order XIII, Rules 3 to 10 - Order 26, Rules 1, 2 and 21 - Rules 9 to 13 and 15 to 30 - Order XVII - Order 23, Rules 1 to 3 - Order XXVI ; ;Madras Motor Accidents Claims Tribunal Rules - Rule 18
AppellantP. Shanmugham and ors.
RespondentMadras Motor and General Insurance Co. Ltd. and ors.
Cases ReferredKrishna v. Pankaj Jethalal Shah
Excerpt:
.....110-c, 110-c (2) of motor vehicles act, section 195 of criminal procedure code, 1898, order 9, order 13 rules 3 to 10, order 16 rules 1, 2 and 21, rules 9 to 13 and 15 to 30, order 17, order 23 rules 1 to 3, and order 26 of code of civil procedure, 1908 and rule 18 of madras motor accidents claims tribunal rules - whether motor accidents claims tribunal has power to issue commission for examination of some witnesses - power to enforce attendance of witnesses includes within it power to have witnesses examined on commission - power to enforce attendance of witnesses may not be available where witness resides more than 200 miles away from tribunal in case order 16 rule 19 apply - power to have witness examined on commission implied - held, tribunal directed to issue commission for..........evidence on oath and enforcing attendance of witnesses would not prima facie include a power to issue commission for examination of witnesses.4. the learned counsel for the petitioners brought to my notice a decision of this court in krishna v. pankaj jethalal shah, : air1970mad259 . it has been held in that decision that the substance of this power is that the claims tribunal will have all the powers related to taking of evidence on oath and of enforcing attendance of witnesses, including the power to have evidence recorded on commission. for the reasons stated earlier, it is difficult to construe that the powers conferred under section 110-c of the motor vehicles act, would also include a power to issue a commission.5. it may be stated that the power to examine witnesses on.....
Judgment:

Kailasam, J.

1. This petition is filed by claimants 3 to 6 in a claim petition before the Motor Accident Claims Tribunal, Coimbatore East. The Claimants filed an application under Order XXVI, Rule 4 and S. 151. Civil P. C. for the issue of a commission to examine witnesses at Madras. The petition was filed for compensation for the loss of life of persons and injuries to one of the petitioners. The petitioners claimed to be the heirs of two of the deceased. The application was taken for the issue of a commission to examine four medical officers and one nurse, all stationed at Madras, to speak with reference to the treatment given to Rukmani, who sustained injuries in the accident and for which compensation had been asked for which compensation had been asked for in the petition. The Insurance Company filed a counter statement attacking the maintainability of the application and stating that the respondents would be put to much expenses and inconvenience if the witnesses were to be examined at Madras. The District Judge has declined to issue a commission on the ground that the applicability of the provisions of the Civil Procedure Code to an enquiry is limited and there is no special provision which gives power for the issue of a commission for examination of witnesses. The revision petition is filed against the said order. On the merits there could be no doubt that it is desirable that a commission is issued otherwise there would be unnecessary expense and the time of the doctors will be taken up which is avoidable if a commission is issued.

2. On behalf of the petitioners it is submitted that the power conferred on the tribunal under Section 110-C of the Motor Vehicles Act is wide enough to include the power to issue a commission. Section 110-C (2) of the Act runs as follows :

'The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed and the Claims Tribunal shall be deemed to be a Civil Court for all purposes of Section 195 and Ch. XXXV, Criminal Procedure Code. 1898.'

The other purpose contemplated in the section is found in Rule 18 of the Madras Motor Accidents Claims Tribunal Rules, which provides-

'The following provisions of the first Schedule to the C. P. Code, 1908, shall so far as may be, apply to proceeding before the Claims Tribunal, O. RR. 9 to 13, and 15 to 30: Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 1, 2, 21; Order XVII and O. XXIII, R.R. 1 to 3.'

Rule 18 does not include Order XXVI which relates to issue of a commission by Civil Courts. The power, if any, will have to be looked for in Section 110-C of the Motor Vehicles Act. Section 110-C (2) provides that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and enforcing attendance of witnesses. No other clause in the section is applicable and therefore may be left out of account. The question is whether all the powers of a Civil Court for the purpose of taking evidence on oath and enforcing attendance of witnesses would include the power to issue a commission. Normally, the powers of taking evidence an oath by a Civil Court would comprise the powers under the relevant rules in Order X, Order XVI and Order XVIII. All the powers that a Civil Court can exercise for the purpose of taking evidence and enforcing attendance of witnesses on oath are admittedly conferred on the tribunal. The question that will include a power to issue a commission to examine a witness.

3. Under Order XXVI, Rule 4, C.P.C., a commission may be issued to any court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the court issuing the commission may appoint. When such commission is issued, the court receiving the commission under Order XXVI, Rule 6 shall examine him or cause him to be examined pursuant thereto. Where a commission has been duly executed the court shall return it together with the evidence taken under it to the court from which it was issued. In order to enjoin a court to which a commission is issued to execute the commission, the authority issuing commission should be vested with the power. The powers conferred on the Claims Tribunal, namely, all the powers of a civil court for the purpose of taking evidence on oath and enforcing attendance of witnesses would not prima facie include a power to issue commission for examination of witnesses.

4. The learned counsel for the petitioners brought to my notice a decision of this court in Krishna v. Pankaj Jethalal Shah, : AIR1970Mad259 . It has been held in that decision that the substance of this power is that the Claims Tribunal will have all the powers related to taking of evidence on oath and of enforcing attendance of witnesses, including the power to have evidence recorded on commission. For the reasons stated earlier, it is difficult to construe that the powers conferred under Section 110-C of the Motor Vehicles Act, would also include a power to issue a commission.

5. It may be stated that the power to examine witnesses on commission is absolutely necessary. It is desirable that the Government frames rules enabling the Tribunal to issue commission under the powers vested in it by Section 110-C of the Motor Vehicles Act.

6. As I am unable to agree with the view taken by the learned Judge, it is desirable that the matter is placed before a Bench for disposal.


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